The book was planned and written as a single, sustained argument. But earlier versions of a few parts of it have appeared separately. The object of this book is both to establish the existence of the paradoxes, and also to describe a non-Pascalian concept of probability in terms of which one can analyse the structure of forensic proof without giving rise to such typical signs of theoretical misfit. Neither the complementational principle for negation nor the multiplicative principle for conjunction applies (...) to the central core of any forensic proof in the Anglo-American legal system. There are four parts included in this book. Accordingly, these parts have been written in such a way that they may be read in different orders by different kinds of reader. (shrink)

Hilary Putnam deals in this book with some of the most fundamental persistent problems in philosophy: the nature of truth, knowledge and rationality. His aim is to break down the fixed categories of thought which have always appeared to define and constrain the permissible solutions to these problems.

Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution by offering the first (...) integrated analysis of the various mechanisms - the standard of proof, the benefit of the doubt, the presumption of innocence and the burden of proof - for implementing society's view about the relative importance of the errors that can occur in a trial. (shrink)

What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (...) as to alter their rights and responsibilities toward each other. To say that it is an artefact is to say that it is a tool of human creation that is designed to signal its usability to people who interact with it. This picture of law's nature is marshalled to critique theories of law that see it mainly as a product of reason or morality, understanding those theories via their conceptions of law's function. It is also used to argue against those legal positivists who see law's functions as relatively minor aspects of its nature. -/- This method of conceptualizing law's nature helps us to explain how the law, understood as social facts, can make normative demands upon us. It also recommends a methodology for understanding law that combines elements of conceptual analysis with empirical research for uncovering the purposes to which diverse peoples put their legal activities. (shrink)

Questo libro analizza la crisi dei fondamenti del diritto penale espressa dal profondo divario tra il sistema normativo delle garanzie e il funzionamento effettivo delle istituzioni punitive. Ne rintraccia le radici nella fragilità teorica del modello garantista tramandato dalla tradizione illuministica e nella concorrenza ad esso opposta, fin dal secolo scorso, dal continuo riemergere di archetipi penali premoderni e di mai spente tentazioni autoritarie. Illustra le forme molteplici d'illegittimità e d'ingiustizia prodotte dall'inadeguatezza o dalle lesioni delle singole garanzie. E propone, (...) di fronte alla crisi del modello, una sua rifondazione filosofica e politica nel quadro di una teoria generale del garantismo. La prefazione è a cura di Norberto Bobbio. (shrink)

Is truth in the law just plain truth - or something sui generis? Is a trial a search for truth? Do adversarial procedures and exclusionary rules of evidence enable, or impede, the accurate determination of factual issues? Can degrees of proof be identified with mathematical probabilities? What role can statistical evidence properly play? How can courts best handle the scientific testimony on which cases sometimes turn? How are they to distinguish reliable scientific testimony from unreliable hokum? These interdisciplinary essays explore (...) such questions about science, proof, and truth in the law. With her characteristic clarity and verve, Haack brings her original and distinctive work in theory of knowledge and philosophy of science to bear on real-life legal issues. She includes detailed analyses of a wide variety of cases and lucid summaries of relevant scientific work, of the many roles of the scientific peer-review system, and of relevant legal developments. (shrink)

Legal scholarship exploring the nature of evidence and the process of juridical proof has had a complex relationship with formal modeling. As evident in so many fields of knowledge, algorithmic approaches to evidence have the theoretical potential to increase the accuracy of fact finding, a tremendously important goal of the legal system. The hope that knowledge could be formalized within the evidentiary realm generated a spate of articles attempting to put probability theory to this purpose. This literature was both insightful (...) and frustrating. Much light was shed on the legal system, but it also quickly became evident that the tools of probability theory were in many ways ill-constructed for the task. Fundamental incompatibilities between the structure of legal decision making and the extant formal tools were identified, and it became evident that many of the purported explanations of legal phenomena were internally inconsistent. As a consequence, interest in this type of formal modeling declined, and attention was directed toward different kinds of explanations of the phenomena. Perhaps under the influence of a recent trend toward various types of formal modeling in legal scholarship, a recent burst of articles, rather than attempting to explain the macro structure of trials, which was the previous object of interest, attempts to quantify the probative value of various items of evidence in ways consistent with the formal features of various probability theories, and then to study decision making from that perspective. For example, the value of evidence is often purported to be its likelihood ratio, that is, the probability of discovering or receiving the evidence given a hypothesis (e.g., the defendant did it) divided by the probability of discovering or receiving the evidence given the negation of the hypothesis (the defendant didn't do it). Alternatively, the value of evidence is purported (more contextually) to be the information gain it provides, defined as the increase in probability it provides for a hypothesis above the probability of the hypothesis based on the other available evidence. Both conceptions then assume that all of the various probability assessments conform or ought to conform to the dictates of Bayes' theorem (that maintains consistency among such assessments); empirical studies are then done testing the extent to which this is so and proposing how the law can increase the probability that it is so. The general criticisms of using Bayes' theorem as a formal model of juridical proof are well known and were integral to the last wave of interest in formal modeling of the evidentiary process. This paper thus for the most part puts aside that more general issue, and focuses specifically on mathematical modeling of the value of particular items of evidence. The paper demonstrates that formal modeling has only limited value in explaining the value of legal evidence, much more limited than those constructing and discussing the models assume, and thus that the conclusions they draw about the value of evidence are unwarranted. This is done through a discussion of four recent examples that attempt to quantify evidence relating to, respectively, carpet fibers, infidelity, DNA random-match evidence, and character evidence used to impeach a witness. This article thus makes two contributions. First, and most importantly, it is another demonstration of the complex relationship between algorithmic tools and legal decision making. Second, at a minimum it points out serious pitfalls for analytical or empirical studies of juridical proof. (shrink)

A central assumption of modern evidence law is that its rules are rules of admissibility only. That is, they tell judges whether or not a given piece of evidence may be viewed by the fact-finder, but they do not purport to tell the finder of fact how to evaluate the evidence once admitted. One can imagine, however, a system of rules that help fact-finders weigh evidence by instructing them, for instance, that the law considers a class of evidence (say, hearsay) (...) to be of "low weight." In fact, such rules - rules of weight - are an old idea with roots in Roman Law. But they have long been ignored by evidence scholars or, when considered, judged to be anachronistic and deeply inconsistent with a system of trial by jury. This Article argues that such hostility to rules of weight is unjustified and that their use should be taken seriously as a possible direction for evidence reform. Given that jury trials are now increasingly rare and that, when a jury is used, its discretion is already constrained in a number of ways, the orthodox view of rules of weight now itself seems outdated. Furthermore, there are reasons to think that such rules could be beneficial for forensic fact-finding. The past use of them by courts, their current role in administrative adjudication, and recent research in cognitive psychology all suggest ways in which rules of weight could make fact-finding fairer, more efficient, and, most important, more accurate. Such benefits make the Supreme Court's recent condemnation of the use of rules of weight in the administrative context that much more difficult to justify. (shrink)

Este libro es fruto de un taller, con el mismo título, organizado por el grupo de investigación de filosofía del derecho de la Universitat de Girona. En él se reunieron algunos de los mejores especialistas internacionales para analizar, desde la perspectiva de la denominada «epistemología jurídica», los problemas probatorios que giran en torno a los estándares de prueba y la prueba pericial-científica. Ahora se recogen aquí ensayos fundamentales en esa área, producto de los debates mantenidos en el encuentro de Girona. (...) El hilo conductor de todos ellos es la pretensión de someter a criterios racionales la práctica y la valoración de la prueba en el proceso judicial. ¿Qué son los estándares de prueba? Además de responder a esta importante cuestión, escasamente abordada en nuestra tradición jurídica, se discuten también otros temas relacionados e incluso dependientes del grado de prueba requerido en un proceso judicial: la valoración de los elementos de prueba, las cargas de prueba y la presunción de inocencia o la graduación de las penas en materia penal. El segundo gran tema gira en torno a los problemas que afronta el juzgador de los hechos para valorar una de las pruebas actualmente en boga: la pericial-científica. Contexto en el que es referencia indispensable un caso hito en el tratamiento judicial de este tipo de elementos, Daubert v. Merrell Dow. Por supuesto, tal como los propios autores sostienen, habrá que considerar las especificidades del contexto procesal en cuestión y la necesidad de tener más información empírica sobre este tipo de conocimientos. (shrink)